Free Motion to Supplement - District Court of Colorado - Colorado

Case 1:04-cv-01124-JLK-MEH

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Filed 04/24/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. O4-cv-01124-JLK-MEH LINDA FORGACS, MONICA JONES, DANIEL LINK, GRACE MORENO AND PAM ROGGE, Plaintiffs, V. EYE CARE CENTER OF NORTHERN COLORADO; WILLIAM L. BENEDICT, M.D.; JOEL S. MEYERS, M.D.; MORRIS TILDEN, M.D.; IRENE OLIJNYK, M.D.; and JAY R. HOLMS, Defendants. _______________________________________________________________________ SUPPLEMENT TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT _____________________________________________________________________ Pursuant to the Court's Order of April 11, 2006, Plaintiffs provide the following Supplement to their Response to Defendants' Motion for Summary Judgment. Defendants have filed several motions for summary judgment. In their response to the motions, the Plaintiffs indicated that certain claims would not be pursued. The Plaintiffs do not dispute the Defendants report in their "Exhibit 1" to the Reply Brief in Support of Motions for Summary Judgment as to which claims have been dropped or dismissed except in one respect. The recitation of the dropped claims contained in Defendants' reply brief is also correct. Plaintiffs dispute the assertion in "Exhibit 1" (page 1) that the claim for damages for late deposits was dropped. Plaintiffs assert that they are entitled to payments pursuant to 29 C.F.R. section 2510 3-102. 1

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In addition, Plaintiffs believe that they have received sufficient information from Defendants so they are willing to withdraw the demand for an accounting.

PLAINTIFFS' FIRST CLAIM FOR RELIEF

1. As to the demand for accounting of all Plaintiffs' 401(k) accounts. The Plaintiffs have received the information provided by Defendants contained in correspondence, disclosures and exhibits to the summary judgment submissions and supplements to summary judgment submissions. The Plaintiffs are satisfied that sufficient information has been provided to constitute an accounting concerning the 401(k) accounts. By agreeing that Defendants have provided the paperwork evidencing their actions related to the 401(k) accounts of the Plaintiffs, Plaintiffs do not agree to the calculations made by Defendants. It is requested that the claim for an accounting of Plaintiffs' 401(k) accounts be dismissed.

2. As to the 401(k) rollover paperwork not being provided in a timely manner. The Defendants claim in their motion for summary judgment that the Plaintiffs may not bring an action for damages or penalties for failure to provide rollover paperwork. Plaintiffs urge that they are entitled to bring a civil action pursuant to 29 U.S.C.

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section 1132(c) for the administrator's failure or refusal to provide such information. 29 U.S.C. 1132 allows for a participant or beneficiary to bring a civil action for, inter alia, relief provided for in subsection (c). Subsection (c)(1) allows for penalties of up to $100.00 per day if the administrator fails to comply with a request for any information he or she is required to provide. Evidence as to whether the rollover paperwork was provided in a timely manner or at all is clearly in dispute. Summary judgment should be denied.

3. As to the liability of Defendants for the late deposits. There is no factual dispute that the Defendants failed to make timely 401(k) deposits. There appears to be no dispute that the applicable regulation governing late payment penalty calculations is 29 C.F.R. section 2510.3-102. Plaintiffs also assume for the purposes of Defendants' motions, that the assertion made by Defendants that they paid what was due under 29 C.F.R. section 2510.3-102 (d)(3)(ii)(B), is correct. The Plaintiffs submit that any calculation made by Defendants should have been done under 29 C.F.R. section 2510.3-102(d)(3)(ii)(A). The defendants have presented no evidence that they complied with the provisions of the regulation by making such calculation. Plaintiffs seek that to which they are entitled under the regulation.

4. As to Rogge's claim under Section 125 Flex Spend. 3

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Defendant argues that Ms. Rogge was terminated for gross misconduct. This assertion is based upon an alleged falsification of time records by Ms. Rogge. There is disputed evidence as to the reason for termination. This argument was made in Plaintiffs' response brief based upon evidence provided by Michelle Hebert in her affidavit. Ms Hebert indicated that the motivation for termination of Ms Rogge was based upon Ms. Rogge's appearance and because of a chronic illness. Ms. Rogge indicated in her affidavit that she did not falsify any time records. Plaintiff Rogge submits that this story was made up as a basis for terminating her employment. Defendants' motion regarding this claim should be denied.

PLAINTIFFS' SECOND CLAIM FOR RELIEF

1. As to Moreno's claim for vacation pay. Ms. Moreno stated in her affidavit that she received permission from the owners to carry over her vacation time (see affidavit of Moreno). Her receipt of permission from Dr. Tilden was in conformance with the provisions of the employee handbook that was attached to the Holms affidavit (Exhibit 1 to Defendants' motion for summary judgment). The employee handbook allows for carry over with the permission of the owners. Nothing stated in the Moreno affidavit (Exhibit 3 to Plaintiffs' Response to Defendants' Request for Summary Judgment) contradicts any evidence presented by Defendants. The evidence is in dispute about whether Ms. Moreno should be allowed to carry over her vacation time and as to whether the company paid all vacation pay due

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to her.

2. As to the wage claims of the other Plaintiffs. These claims have been dropped by the Plaintiffs.

PLAINTIFFS' THIRD CLIAM FOR RELIEF

1. As to the claims of defamation. The Defendants have asserted that Meyers, Tilden and Olijinyk should be granted summary judgment on this claim because they were not the publishers of the defamatory comments. This was the only issue raised by the Defendants regarding the defamation claim in their motions for summary judgment. Plaintiffs urge that the action of Meyers, Olijinyk and Tilden constituted publication of the defamatory comments. Evidence provided in the affidavit of Michelle Hebert indicates that Holms, Tilden, Benedict and Meyers met and discussed the allegations of stolen money. Shortly after that meeting, all individual Defendants met with the staff of the Eye Care Center and told the staff about the allegations. All individual defendant doctors nodded their heads in agreement with the accusations made by Holms. This meeting took place well after Forgacs, Link and Jones left the company and these discussions had nothing to do with the decisions to terminate them. The motion requesting dismissal of the defamation claims by Tilden, Meyers and Olijinyk should be denied.

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Respectfully submitted,

s/George C. Price George C. Price Attorney for Plaintiff 900 Logan Street Denver, CO 80203 Telephone:(303)861-5500 [email protected]

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on April 24, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: John R. Paddock, Jr. Pryor Johnson Carney Karr Nixon, P.C. 5619 DTC Parkway, Suite 1200 Greenwood Village, CO 80111-3061 [email protected]

/s/George C. Price George C. Price Attorney for Plaintiff 900 Logan Street Denver, CO 80203 Telephone:(303)861-5500 [email protected]

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